Legal Essays and Articles

  • Article Posted By: lochangupta Posted on : 4/12/2015 1:21:43 PM


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    “The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of political winds that are blowing.”- Caroline Kennedy

    Judiciary is one of the three pillars of democracy. Indian courts are based on British legal systems which are in turn based on common law. The Indian Courts are governed by rule of law and judicial review of administrative action is essential rule of law. Thus courts can determine not only the constitutionality of law but also the procedural part of administrative action.[1]

    In order to maintain the supremacy of the constitution, there must be an independent and impartial authority to decide dispute between units of federation. The Supreme Court under constitution is such an arbitration. It is the final interpreter and guardian of the constitution, which helps in keeping the democratic structure intact by preventing the arbitrary use of governmental authority and rights of citizens. The principal of judicial review is rooted in the philosophy that constitution is a fundamental law; all governmental organs must not do anything which is inconsistent with the provisions of the constitution. Judicial review thus makes constitution legalistic. Judicial review is thus the imposition of judicial restraint on the legislative as well as executive organs of the government.

    In India, the power of judicial review is itself made subject to the limitation expressly provided in the Constitution e.g. Articles 32, 226, 74, 77, 163, 166, 105, 194, 12, 212. The Supreme Court has also evolved certain self imposed limitations on its powers of judicial review such as res judicata, laches, standing, waiver, etc.

    In many cases, Supreme Court has acted as a custodian, defender of rights of the people, and democratic system of the government only through the judicial review. In Keshvananda Bharti’s case[2], it was held that the judicial review is the basic feature of the constitution and it cannot be amended.

    The traditional rule of local standii is that person whose fundamental right is infringed can only file petition under Article 32. The rule has now been relaxed by Supreme Court. The court now permits ‘Social action litigation’ or ‘Public interest litigation’ (pro bono publicio litigation) at the instance of ‘public-spirited citizens’ for the enforcement of any constitutional or legal right of any person or group of persons who because of their poverty, or socio-economic disadvantaged position or otherwise such as being in custody are unable to approach the court for relief. The doctrines of PIL apply to any case of public injury arising from: a) the breach of any public duty, or b) the violation of some provisions of the constitution, or c) of the law. (S.P. Gupta case).[3]

    The necessary limitation of PIL is that the jurisdiction cannot be allowed to be abused by meddlesome interloper or busybody or a personal action for personal gains or private profit or with political considerations. To avoid these defects, the Supreme Court has frames certain guidelines for entertaining letter/ petitions as PIL: the petitions involving individual or personal matters shall not be entertained as a PIL matter except as indicated hereinafter. Ordinarily, the letters or petitions under the following categories should be entertained as PIL-

    1. Neglected children
    2. Bonded laborers
    3. Non- payment of minimum wages to workers and violation of labor laws.
    4. Petition from prisons
    5. Speedy trial
    6. Petitions against atrocities on women
    7. Petitions against police accesses
    8. Petitions against atrocities on SC, STs, etc.
    9. Petition from riot victims
    10. Petitions relating to family pension
    11. Petition pertaining to environmental matters, maintenance of heritage and culture
    12. Other matters of public importance(viz. maintenance of communal harmony, public health, etc)

    Petitions for early hearing of cases pending in courts, petitions relating to service matters, pensions and gratuity, petition pertaining to the landlord-tenant matters, petitions relating to the medical and other educational institutions will not be entertained as PIL.

    Res judicata is a rule of public policy that there should be finality to binding decisions of courts of competent jurisdiction and that the parties should not be waxed with same litigation again[4]. Thus where the matter has been heard and decided by the High Court under Article 226, the writ under Article 32 is barred by the above said rule. In addition to this, if a question has been once decided under Article 42, the same question cannot be reopened again under Article 226. However the petition under Article 32 for habeas corpus is an exception to this general rule.

    The independence and impartiality of the judiciary is one of the hallmarks of the democratic setup of the government. It is a first condition of liberty and rule of law in the democracy indeed an independent judiciary is a part of basic structure of the constitution. The safeguards provided by the constitution to ensure independence of judiciary include appointment and transfer of judges by the President only after consultation with the Chief Justice of the concerned court, security of tenure of the judges, maintenance of conditions of service of judges, administrative control by the judges of Supreme Court and High Court, power to punish for its own contempt, separation of judiciary from the executive, etc.

    The Supreme Court pronounce its advisory opinion in Appointment and Transfer of judges Re. Presidential Reference[5] in which it provided some more safeguards viz. consultation of plurality of judges. The Chief Justice had to consult four senior most judges of the Supreme Court and if two of the four disagreed on some name, it could not be recommended. In effect, decisions were to be taken by consciences where Chief Justice and at least three of the four had to agree.

    Article 129 provides that Supreme Court shall be a court of record and shall have all the powers of such a court. Being the highest court of the land, its proceedings, acts and decisions are kept in record for perpetual memory and for presentation as evidence, where need be in support of what the law is. Being a court of record implies that its records can be used as evidence and cannot be questioned for its authenticity in any court.[6]

    Court of record also means that it can punish for its own contempt but this is a summary power used sparingly and under pressing circumstances. It does not inhibit genuine and well intentioned criticism of court of its functioning. Fair and reasonable criticism of a judicial act in the interest of public good does not constitute contempt.

    Under Article 136, the Supreme Court at its discretion may grant special leave to appeal from any judgment, decree, determination, sentence or order, in any case or matter past or made by any court or tribunal in the territory of India. This is called Special Leave Petition (S.L.P). The Supreme Court can grant special leave against judgments of any court or tribunal in the territory except the military courts or in any type of cases, civil, criminal or revenue. But the Supreme Court itself has said that it will grant special leave to appeal only in cases where there has been “gross miscarriage of justice” or where High Court or tribunal is found to have been wrong in law. If the judgment of the court below shakes the conscience and shocks the sense of justice, the Supreme Court shall interfere[7].

    Article 137 provides for Supreme Court having the power to review his own judgment and orders. However, it is subject to any law passed by Parliament. In a review petition, an error of substantial nature only can be reviewed.

    Law declared by Supreme Court is binding on all courts in India vide Article 141[8]. But no law can be taken to have been declared where no reason are given. Also, what is binding is the principal or the ratio of the decision and not finding on facts, opinions (obiter dicta) or arguments[9]. Supreme Court is not bound by its own decisions and may in proper case reverse its previous decisions.

    Writ is a quick remedy against injustice, a device for the protection of rights of citizens against any encroachment by the governmental authority in India power to issue writs has been wasted in the Supreme Court and the High Courts. It is a speedy remedy and is made available without going into avoidable technicalities. It is an extraordinary remedy which can be expected in special circumstances. The scope of writs in Indian law is wider than that of prerogative writs in England. This is because firstly, the constitution uses the word “writs in the nature of” which does not make our writs identical with those in England but only draws an analogy from the later. Secondly, our High Court can issue directions, orders or writs other than the prerogative writs. This enables the court to mould the reliefs to meet peculiar and complicated requirements of this country. Under Article 226, writs can be issued to “any persons or Authority”[10].

    In Rupa Ashok Hurra v Ashok Hurra,[11] a five judge constitution bench held that although a writ petition under Article 32 against a final judgment or order of the Supreme Court after the disposal of review petition under Article 137 is not maintainable yet the court can in rarest of rare cases reconsider its final judgment to prevent abuse of process of the court to review a gross miscarriage of justice.

    In its historic judgment[12] the Supreme Court has laid down various guidelines in regard to the use of Article 356 which it is hoped would put a check on arbitrary dismissal of State Governments in future and strengthen the federal structure of Indian Policy.

    Lastly, all the above discussion gives us a conclusive proof that Indian Judiciary is possessed of wide powers which it has effectively used to safeguard and protect the fundamental law of the land and in turn rights and privileges of its citizens. So Indian judicial system serves as effective check on the arbitrary use of power and functions by the various authorities and it has effectively stood by the test of the time thus saving our country by checking arbitrary and unreasonable us e of power. Thus bringing accountability for the actions of every individual residing in the nation.


    [1] State of Bihar v Subash Singh AIR 1997SC 1390

    [2] A.I.R1973SC1461

    [3] A.I.R1984SC802

    [4]Sec 11, CIVIL PROCEDURE CODE,1908

    [5] A.I.R1999S.C 1

    [6] Daphtary v. Gupta A.I.R1971S.C1132

    [7] Mahesh v State of Delhi(1991) Cr. L.J 1703(SC)

    [8] Vineet Narayan v Union of India A.I.R 1998 SC 889

    [9] Supreme Court employees v Union of India A.I.R 1991SC 334

    [10] Shree Anandi Mukta Sat guru Trust v V.R. Rudani A.I.R 1989 SC 1607

    [11] A.I.R 2002 SC 1771

    [12] S.R. Bommai v Union of India A.I.R 1994 SC 1918

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